10-002488 Gary Powell vs. Spanish Trail Lumber Company Status: Closed Recommended Order on Tuesday, August 10, 2010.

Summary: Petitioner did not prove that Respondent discriminated against him based on his race by terminating his employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY POWELL, )

)

Petitioner, )

)

vs. ) Case No. 10-2488

)

SPANISH TRAIL LUMBER COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on July 2,

2010, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Gary Powell, pro se

6782 Bumpy Lane

Grand Ridge, Florida 32442

For Respondent: Eric J. Holshouser, Esquire

Fowler White Boggs, P.A.

50 North Laura Street, Suite 2800

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner based on his race contrary to Section 760.10, Florida

Statutes (2009).

PRELIMINARY STATEMENT

On or about June 30, 2009, Petitioner Gary Powell

(Petitioner) filed a Charge of Discrimination with the Florida

Commission on Human Relations (FCHR). The charge alleged that

Respondent Spanish Trail Lumber Company (Respondent) had

discriminated against Petitioner based on his race.

On April 30, 2010, FCHR issued a Determination: No Cause.

On May 7, 2010, Petitioner filed a Petition for Relief with

FCHR. The petition was referred to the Division of

Administrative Hearings on May 11, 2010.

A Notice of Hearing dated May 20, 2010, scheduled the

hearing for July 2, 2010.

During the hearing, Petitioner testified on his own behalf

and presented the testimony of three witnesses. Petitioner did

not offer any exhibits for admission into the record as

evidence.

Respondent presented the testimony of one witness and

offered three exhibits that were accepted as evidence.

The Transcript was filed on July 20, 2010. Respondent

filed its Proposed Recommended Order on July 28, 2010. As of

the date that this Recommended Order was issued, Petitioner had

not filed proposed findings of fact and conclusions of law.

Except as otherwise noted, all references hereinafter shall

be to Florida Statutes (2009).

FINDINGS OF FACT

1. Respondent operates a lumber mill in a community known

as Cypress near Marianna, Florida. In 2007, Respondent hired

Petitioner, an African-American male, to operate a 966

Caterpillar loader (the loader) at the mill.

2. Melvin Lewis is an African-American male. Mr. Lewis is

a second-shift supervisor. At all times relevant here,

Mr. Lewis was Petitioner's immediate supervisor.

3. Mr. Lewis reports directly to Ross Jackson, a white

male. Mr. Jackson has been Respondent's general manager since

January 2008.

4. In May 2008, Mr. Lewis told Petitioner that the loader

was slowly leaking brake fluid. Mr. Lewis instructed Petitioner

to always check the loader to ensure that it had brake fluid.

5. On or about Thursday, May 28, 2009, between 2:30 a.m.

and 3:00 a.m., Petitioner was involved in an accident while

operating the loader. Petitioner told Mr. Lewis that a log fell

onto the loader, the brakes failed, and the loader went over a

retaining wall.

6. After the accident, Mr. Lewis immediately checked the

brake fluid reservoir. He found the reservoir empty.

7. Petitioner knew or should have known the standard

procedure to follow when, and if, a log rolled onto a loader.

In that event, the loader operator was supposed to immediately

call his supervisor on the two-way radio and request help.

8. At the time of the accident, Petitioner and Mr. Lewis

had working two-way radios. Petitioner used the radio to call

Mr. Lewis right after the accident. He did not call for help

when the log first rolled onto the loader.

9. On May 28, 2009, Petitioner was operating the 966

loader on a ramp that is 75-feet long and 40-feet wide with a

retaining wall on each side of the ramp. At the high end of the

ramp is a flat area where Petitioner was picking up logs from a

pile.

10. To get off of the flat part of the ramp, Petitioner

had to accelerate backwards to then go down the ramp. When the

accident occurred, Petitioner had traveled almost all of the way

down the 75-foot ramp and then turned the loader 90 degrees

toward the retaining wall. To go over the one and one-half foot

retaining wall, the loader must have been traveling at a fairly

high rate of speed.

11. The accident tore the transmission off of the loader.

The loader was inoperable and had to be repaired. The cost of

the repairs was over $14,000.

12. After the accident, Mr. Lewis told Petitioner that

"this is really bad." Mr. Lewis first directed Petitioner to

clock-out and go home. Mr. Lewis then told Petitioner to stay

until Mr. Jackson arrived at work at 5:00 a.m.

13. When Mr. Jackson came in to work, he told Petitioner

that he would be suspended until Mr. Jackson and Mr. Lewis had a

chance to review the situation. Mr. Jackson told Petitioner to

report back on Monday, June 1, 2009.

14. Mr. Lewis decided that Petitioner should not be

allowed to operate equipment for the following reasons:

(a) Petitioner failed to keep brake fluid in the loader as

instructed; (b) Petitioner failed to call for help on his radio

when the log rolled onto the loader; and (c) with the log on the

loader, Petitioner accelerated backward down the ramp, turned

the loader 90 degrees, and drove the loader fast enough to hit

the retaining wall and bounce over it.

15. Mr. Lewis recommended termination of Petitioner's

employment. Mr. Jackson concurred. Petitioner was terminated

on June 1, 2009.

16. No evidence indicates that the decision to terminate

Petitioner's employment was based on his race. There was no

persuasive evidence that Respondent gave any white employee more

favorable treatment under similar circumstances.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and 760.11,

Florida Statutes.

18. It is unlawful for an employer to discriminate against

an individual based on the individual's race. See

§ 760.10(1)(a), Fla. Stat.

19. The Florida Civil Rights Act (FCRA), Sections 760.01

through 760.11, Florida Statutes, as amended, was patterned

after Title VII of the Civil Rights Act of 1964, 42 U.S.C.

Section 2000e et seq . Federal case law interpreting Title VII

is applicable to cases arising under the FCRA. See Green v.

Burger King Corp. , 728 So. 2d 369, 370-371 (Fla. 3d DCA 1999);

Florida State Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA

1996).

20. Petitioner can establish a case of racial

discrimination through statistical, direct, or circumstantial

evidence. See Holifield v. Reno , 115 F.3d 1555, 1561-1562 (11th

Cir. 1997). In this case, Petitioner presented no statistical

or direct evidence of discrimination.

21. An employment discrimination case based on

circumstantial evidence involves the following burden-shifting

analysis: (a) the employee must first establish a prima facie

case of discrimination; (b) the employer may then rebut the

prima facie case by articulating a legitimate non-discriminatory

reason for the employment action in question; and (c) the

employee then bears the ultimate burden of persuasion to

establish that the employer's proffered reason for the action

taken is merely a pretext for discrimination. McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 802-805 (1973).

22. To establish discrimination in discipline or by

unlawful termination, Petitioner must show the following:

(a) he belongs to a protected group such as a minority race;

(b) he was qualified for the job; (c) he was subjected to an

adverse employment action; and (d) a similarly-situated

employee, who is not a member of the protected group, engaged in

the same or similar misconduct, but did not receive similar

discipline or termination. See Nicholas v. Board of Trustees ,

251 Fed. Appx. 637, 642 (11th Cir. 2007).

23. To determine whether employees are similarly situated,

one must consider whether "the employees are involved in or

accused of the same or similar conduct and are disciplined in

different ways." See Maniccia v. Brown , 171 F.3d 1364, 1368

(11th Cir. 1999). In order to make that determination, courts

"require that the quantity and quality of the comparator's

misconduct be nearly identical to prevent . . . second-guessing

employers' reasonable decisions and confusing apples with

oranges." Id. at 1368.

24. During the hearing, Petitioner testified that a white

employee, Joe Todd, was treated differently after causing an

accident. It is true that Mr. Todd was involved in a minor

accident, but unlike Petitioner, Mr. Todd did not cause any

damage whatsoever to Respondent's equipment.

25. Mr. Todd's accident was more like Petitioner's two

prior accidents. Discipline was unnecessary for the minor

accidents because Respondent's equipment was not being operated

recklessly.

26. On the other hand, Respondent presented evidence that

Petitioner was not the only employee to have been terminated by

Mr. Jackson for reckless operation of equipment. Mr. Jackson

terminated a white man, Doug Snoke, for reckless operation of

equipment.

27. Petitioner failed to show that he was similarly

situated with any other non-African-American. Petitioner caused

significant and costly damage to a piece of valuable machinery.

28. Assuming that Petitioner established a prima facie

case, Respondent produced evidence of a legitimate and

nondiscriminatory reason for its action, i.e. Petitioner's

improper operation of the loader. Petitioner did not show that

this reason was a pretext for intentional racial discrimination.

Petitioner has not met his burden of proof in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 10th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of August, 2010.

COPIES FURNISHED :

Eric J. Holshouser, Esquire

Fowler, White and Boggs, P.A.

50 North Laura Street, Suite 2800

Jacksonville, Florida 32202

Gary Powell

6782 Bumpy Lane

Grand Ridge, Florida 32442

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.